Dr. Allison Berry

“I don’t have any ax to grind or personal grudge against Ms. Berry.””

Rona Frantz, Plaintiff in lawsuit against Public Health Officer Dr. Allision Berry

A Kitsap County judge dismissed a lawsuit by two Quilcene residents over Jefferson County’s COVID-19 mask mandate and proof-of-vaccine requirement for indoor eating at bars and restaurants.

Rona and Brian Frantz filed a civil lawsuit in Jefferson County Superior Court in December, claiming the public health orders adopted by Dr. Allison Berry, public health officer for the county, violated their due process rights.

The pair said a hearing should have been held on the mandates, and that Berry had exceeded her authority and also failed to follow the Washington Administrative Procedures Act.

After a hearing Friday in Jefferson County Superior Court, Kitsap County Superior Court Judge Tina Robinson dismissed the lawsuit.

Robinson said the due process rights of Rona and Brian Frantz were not violated.

That echoed the defense given by Chief Civil Deputy Prosecutor Philip Hunsucker, who noted that the mask and proof-of-vaccination restrictions had not been directed individually at Rona and Brian Frantz, but at the county as a whole. 

As such, they were not entitled to an individual notice and hearing, Hunsucker said. 

In court papers, Hunsucker noted Frantz offered “no evidence that COVID-19 is a dangerous, contagious disease.”

“Cases upholding mask and vaccine mandates based on a state’s police power start with decisions by the U.S. Supreme Court and the Washington Supreme Court going back over 100 years and include the COVID-19 pandemic,” Hunsucker added.

“As your honor is fully aware, superior courts must follow the law of the Supreme Court on constitutional issues,” Hunsucker told the judge during Friday’s hearing.

“There’s no hearing required,” he said.

Rona Frantz disagreed.

“I don’t have any ax to grind or personal grudge against Ms. Berry,” Frantz added. “I’m sure she’s been under a lot of pressure lately. I don’t want to add to that. But I think we should follow the procedures because they are there for a purpose.”

Frantz repeatedly raised due process concerns and the lack of a hearing on the mandates.

“She went beyond the scope of her authority granted by Congress,” Frantz said of Berry, who is the public health officer for both Jefferson and Clallam counties.

Hunsucker, however, had earlier noted that Berry was not bound by the Washington Administrative Procedures Act, and added that a summary judgment was appropriate because there were no facts in dispute in the case, only issues of law. Lawsuits can be stopped short of a trial when no facts in the case are in dispute.

Robinson agreed.

“The issue you have is not issues of fact, but issues of law,” the judge said.

The Frantzes were not entitled to a hearing over the COVID mandates, she added.

She also said the correct way to challenge a local public health order was to file a complaint with the Washington State Board of Health, which the Frantzes didn’t do.

Robinson noted the Frantzes’ counterparts in Clallam County had filed a challenge to 

Berry’s proof-of-vaccination health order for Clallam, which was nearly identical to the one adopted for Jefferson County, to the Washington State Board of Health, and they also claimed Berry lacked the authority to issue the order. 

The complaint was unanimously rejected by the Washington State Board of Health in October for a lack of merit.

Robinson agreed the lawsuit and claims against Berry should be dismissed.

Rona Frantz continued to argue they should have had a hearing.

“I disagree with your assessment,” Robinson said finally. “And I’ve made my ruling.”

“I guess I’ll see you guys in federal court,” Frantz said before leaving the courtroom.